Citation Nr: 0510129
Decision Date: 04/07/05 Archive Date: 04/21/05
DOCKET NO. 01-08 664 ) DATE
)
)
On appeal from the Department of Veterans Affairs Medical and
Regional Office Center in Wichita, Kansas
THE ISSUE
Entitlement to an increased disability rating for service-
connected headaches, currently evaluated as 10 percent
disabling.
ATTORNEY FOR THE BOARD
L. Cramp, Associate Counsel
INTRODUCTION
This case comes before the Board of Veterans Appeals (the
Board) on appeal from a September 2001 rating decision of the
Department of Veterans Affairs (VA) Regional Office in
Wichita, Kansas (the RO).
Procedural history
The veteran served on active duty from February 1980 to March
2000.
In a June 2001 rating decision, the RO granted the veteran's
claim of entitlement to service connection for migraine
headaches. A noncompensable disability rating was assigned.
The veteran filed a notice of disagreement in July 2001and in
September 2001 issued a statement of the case. The veteran's
appeal was perfected with the timely receipt of a VA Form 9
(substantive appeal) in October 2001.
In January 2003, the RO increased the disability rating to 10
percent. The veteran has not expressed satisfaction with the
assigned rating. See AB v. Brown, 6 Vet. App. 35 (1993)
[applicable law mandates that it will generally be presumed
that the maximum benefit allowed by law and regulation is
sought, and it follows that a claim remains in controversy
where less than the maximum benefit available is awarded].
In December 2003, the Board remanded this issue to the VA
Appeals Management Center (AMC) for additional evidentiary
development. The veteran submitted additional medical
evidence in June 2004, and a VA examination was completed in
January 2005. Late the same month the AMC issued a
supplemental statement of the case which continued to deny
the veteran's claim.
Issues not on appeal
In December 2003, the Board remanded issues of entitlement to
service connection for right and left foot disorders and
right and left knee disorders for further development. After
the requested development was accomplished, the AMC issued a
rating decision in January 2005 which granted service
connection as to all four claims. To the Board's knowledge
the veteran has not appealed that decision, and accordingly
it will be addressed no further. See Grantham v. Brown, 114
F.3d 1156 (Fed. Cir. 1997) [where an appealed claim for
service connection is granted during the pendency of the
appeal, a second Notice of Disagreement must thereafter be
timely filed to initiate appellate review of the claim
concerning the compensation level assigned for the
disability].
The Board's December 2003 decision also included a denial on
the merits as to entitlement to service connection for a
sleep disorder. The Board's decision is final. See 38
C.F.R. § 20.1100 (2004). Accordingly, that issue will be
addressed no further.
In the Introduction to the December 2003 decision, the Board
addressed several additional issues. For various reasons,
issues stemming from grants of service connection for
hidradenitis suppurativa, hypertension, a low back disorder,
a penile disorder, a scar of the left arm, chronic
bronchitis, prostatitis, right ear hearing loss and tinnitus,
as well as denials of service connection for generalized
arthritis, pes planus and a hip disorder, were found not to
be on appeal. There has since been no change in the status
of any of those issues, and the Board will not discuss them
further.
In a February 2002 statement, the veteran maintained that he
has a kidney disorder, ear infections and a digestive
disorder which are related to his military service. Those
issues were referred to the RO in the Board's December 2003
remand, and the record now before the Board does not indicate
that the RO has taken any action since then. They are again
referred to the RO.
Representation
The Board notes that while Disabled American Veterans
submitted a VA Form 646 on behalf of the veteran in July
2003, it does not appear that they represent him or that he
has designated a Power of Attorney in this matter. A
notation in the file from Disabled American Veterans
indicates that they do not represent him.
In June 2004, the veteran submitted a letter stating: "add a
notation to the record that they [DAV] do not represent me."
The veteran is clearly aware that he is unrepresented, and
has been informed by the RO as to how he can obtain a
representative if he so desires. Specifically , the veteran
was notified by a June 2001 letter that the RO had no record
of him appointing a service organization to represent him,
and that the RO would supply him with a list of service
organizations at his request. It does not appear that the
veteran acted on that offer. The Board therefore concludes
that the veteran wished to proceed unrepresented in this
matter.
FINDING OF FACT
The veteran's headache disability is manifested by complaints
of migraine headaches that occur approximately 2 to 3 times
per week with some photophobia. Objective clinical findings
show that the veteran has migraine headaches that are not
incapacitating, and that generally do not affect the
veteran's activities of daily living.
CONCLUSION OF LAW
The criteria for a higher disability rating for headaches
have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R.
§ 4.124a, Diagnostic Code 8100 (2004).
REASONS AND BASES FOR FINDING AND CONCLUSION
The veteran is an increased disability rating for his
service-connected headaches.
In the interest of clarity, the Board will initially discuss
certain preliminary matters. The Board will then address the
pertinent law and regulations and their application to the
facts and evidence.
The Veterans Claims Assistance Act of 2000
The Board has given consideration to the provisions of the
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
114 Stat. 2096 (2000) (VCAA) [codified as amended at 38
U.S.C.A. §§ 5102, 5103, 5103A, 5107) (West 2002)]. This law
eliminated the former statutory requirement that claims be
well grounded. Cf. 38 U.S.C.A. § 5107(a) (West 1991). The
VCAA includes an enhanced duty on the part of VA to notify a
claimant as to the information and evidence necessary to
substantiate a claim for VA benefits. The VCAA also
redefines the obligations of VA with respect to its statutory
duty to assist claimants in the development of their claims.
Regulations implementing the VCAA have been enacted. See 66
Fed. Reg. 45,620 (Aug. 29, 2001) [to be codified as amended
at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)].
Except for provisions pertaining to claims to reopen based on
the submission of new and material evidence, the VCAA is
applicable to all claims filed on or after the date of
enactment, November 9, 2000, or filed before the date of
enactment but not yet final as of that date. The provisions
of the VCAA and the implementing regulations are,
accordingly, applicable to this case. See Holliday v.
Principi,
14 Vet. App. 282-83 (2001) [the Board must make a
determination as to the applicability of the various
provisions of the VCAA to a particular claim].
The Board has carefully considered the provisions of the VCAA
and the implementing regulations in light of the record on
appeal, and for reasons expressed immediately below finds
that the development of these issues has proceeded in
accordance with the provisions of the law and regulations.
As stated above, the VCAA alters the legal landscape in three
distinct ways: standard of review, notice and duty to assist.
The Board will now address these concepts within the context
of the circumstances presented in this case.
Standard of review
After the evidence has been assembled, it is the Board's
responsibility to evaluate the entire record. 38 U.S.C.A. §
7104(a) (West 2002). When there is an approximate balance of
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant. 38
U.S.C.A. § 5107 (West 2002); 38 C.F.R.
§§ 3.102, 4.3 (2004) [reasonable doubt to be resolved in
veteran's favor]. In Gilbert v. Derwinski, 1 Vet. App. 49,
53 (1990), the United States Court of Appeals for Veterans
Claims (the Court) stated that "a veteran need only
demonstrate that there is an 'approximate balance of positive
and negative evidence' in order to prevail." To deny a claim
on its merits, the preponderance of the evidence must be
against the claim. Alemany v. Brown, 9 Vet. App. 518, 519
(1996), citing Gilbert at 54.
Duty to notify
The VCAA requires VA to notify the claimant and the
claimant's representative, if any, of any information and any
medical or lay evidence not previously provided to the
Secretary that is necessary to substantiate the claim. As
part of the notice, VA is to specifically inform the claimant
and the claimant's representative, if any, of which portion,
if any, of the evidence is to be provided by the claimant and
which part, if any, VA will attempt to obtain on behalf of
the claimant. See 38 U.S.C.A.
§ 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet.
App. 183 (2002)
[a letter from VA to an appellant describing evidence
potentially helpful to the appellant but not mentioning who
is responsible for obtaining such evidence did not meet the
standard erected by the VCAA].
To comply with the aforementioned VCAA requirements, the RO
must satisfy the following four requirements.
First, the RO must inform the claimant of the information and
evidence not of record that is necessary to substantiate the
claim. See 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. §
3.159(b)(1) (2004). The Board observes that the veteran was
notified by the June 2001 and January 2003 rating decisions,
and by the September 2001 statement of the case (SOC), and by
the January 2005 supplemental statement of the case (SSOC) of
the pertinent law and regulations, of the need to submit
additional evidence on his claim, and of the particular
deficiencies in the evidence with respect to his claim. In
June 2001, the RO contacted the veteran by telephone and
informed him of the provisions of the VCAA. The RO explained
to the veteran what steps had been taken to that point, and
what evidence had been obtained and reviewed. The RO also
notified the veteran that it would assist him further in
obtaining additional evidence.
More significantly, a letter was sent to the veteran in June
2001 in connection with the veteran's service connection
claim. That letter explained in detail the elements that
must be established in order to grant service connection; it
enumerated the evidence already received; and it provided a
description of the evidence still needed to establish those
elements.
Second, the RO must inform the claimant of the information
and evidence the VA will seek to provide. See 38 U.S.C.A. §
5103 (West 2002); 38 C.F.R. § 3.159(b)(1) (2004). In the
June 2001 VCAA letter, the RO informed the veteran that the
RO would get such things as "medical records, employment
records, or records from other Federal agencies," if the
veteran supplied enough information to identify such records.
The veteran was also notified that a VA examination was being
scheduled to evaluate his claimed disabilities.
Third, the RO must inform the claimant of the information and
evidence the claimant is expected to provide. See 38
U.S.C.A. § 5103 (West 2002); 38 C.F.R.
§ 3.159(b)(1) (2004). The June 2001 letter told the veteran
that he could identify medical evidence showing treatment for
a current disability, or submit statements from himself or
others describing his symptoms.
Finally, the RO must request that the claimant provide any
evidence in the claimant's possession that pertains to the
claim. See 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. §
3.159(b)(1) (2004). Even though the June 2001 letter did not
specifically request that the veteran provide "any evidence
in [his] possession that pertains to the claim" [as stated in
38 C.F.R. § 3.159 (b)], it did request that he "Tell us about
any additional information or evidence you want us to try to
get for you." The Board believes that this request
substantially complies with the requirements of 38 C.F.R. §
3.159 (b) in that it informed the veteran that he could
submit or identify evidence other than what was specifically
requested by the RO. In any event, as discussed immediately
below the "give us everything you have" provision was
subsequently fully explained to the veteran.
In addition to the June 2001 letter, the RO sent a detailed
letter in May 2004, which specifically informed the veteran
of the evidence necessary to substantiate his increased
rating claim. That letter informed the veteran that he
should "submit evidence showing that your service-connected
headaches has increased in severity." The letter also
explained in similar terms as the June 2001 letter the types
of evidence VA would obtain, and the types of evidence the
veteran was expected to provide, and specifically notified
him that "If you have any evidence in your possession that
pertains to your claim, please send it to us." In addition
to medical evidence, the May 2004 letter also informed the
veteran that he could "submit statement[s] from other
individuals who are able to describe from their knowledge and
personal observations in what manner your disability has
become worse." Also with respect to lay evidence, the
letter informed the veteran that, "If you have not recently
been examined or treated by a doctor and you cannot submit
other evidence of increased disability, you may submit your
own statement. This should completely describe your
symptoms, their frequency and severity, and other
involvement, extension and additional disablement caused by
your disability."
With respect to the "give us everything you have" provision
contained in 38 C.F.R. § 3.159(b), the June 2004 letter
advised the veteran as follows: "If there is any other
evidence or information that you think will help support your
claim, please let us know. If you have any evidence in your
possession that pertains to your claim, please send it to
us."
The Board is of course aware of the Court's decision in
Pelegrini v. Principi,
17 Vet. App. 412 (2004), which appears to stand for the
proposition that VCAA notice must be sent prior to
adjudication of the issue by the RO. The June 2001 VCAA
notice letter was sent to the veteran prior to the RO's
initial adjudication of his service connection claim.
Moreover, following receipt of the May 2004 VCAA which
specifically referenced to increased rating claim, the
veteran was afforded ample opportunity to respond and to
submit or identify evidence pertinent to his claim, and the
RO readjudicated his claim in a January 2005 supplemental
statement of the case.
The Board notes that the fact that the veteran's claim was
adjudicated by the RO in June 2001, within one year period
after the VCAA notification letter, does not render the RO's
notice invalid or inadequate. The same applies to the
January 2005 SSOC being issued with one year after the May
2004 VCAA letter. The Veterans Benefits Act of 2003, Pub. L.
No. 108-183, § 107, 117 Stat. 2651, ___ (Dec. 16, 2003) [to
be codified at 38 U.S.C. § ____], made effective from
November 9, 2000, specifically addresses this matter and
provides that nothing in paragraph (1) of 38 U.S.C.A. § 5103
shall be construed to prohibit VA from making a decision on a
claim before the expiration of the one-year period referred
to in that subsection.
Based on this procedural history, the Board finds that the
veteran was notified properly of his statutory rights.
Duty to assist
In general, the VCAA provides that VA shall make reasonable
efforts to assist a claimant in obtaining evidence necessary
to substantiate a claim for VA benefits, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim. The law provides that the
assistance provided by VA shall include providing a medical
examination or obtaining a medical opinion when such an
examination or opinion is necessary to make a decision on the
claim. An examination is deemed "necessary" if the record
does not contain sufficient medical evidence for VA to make a
decision on the claim. See 38 U.S.C.A. § 5103A (West 2002);
38 C.F.R. § 3.159 (2004).
The Board finds that reasonable efforts have been made to
assist the veteran in obtaining evidence necessary to
substantiate his claim, and that there is no reasonable
possibility that further assistance would aid in
substantiating it.
In particular, upon receipt of the veteran's claim for
service connection, the RO obtained the veteran's service
medical records and VA outpatient treatment records. The
veteran was also afforded VA examinations in August 2000, in
November 2002, and in January 2005, and those reports were
obtained and reviewed by the RO.
The veteran has submitted additional medical evidence on
several occasions. There is no indication that there exists
any evidence that has a bearing on this case that has not
been obtained.
The veteran has specifically contended in a January 2005
letter that his January 2005 VA examination was inadequate.
He pointed to the examiner's statement that not every page of
the claims folder was reviewed. He also pointed to the
examiner's statement that he could not find a reference in
the service medical records to an injury that led to a
several day hospitalization for a closed head injury with
loss of consciousness. The veteran enclosed copies of those
records.
The Board notes initially that its December 2003 remand did
not instruct that an examination be conducted. Therefore,
there is no issue with respect to a violation of the Court's
holding in Stegall v. West, 11 Vet. App. 268 (1998) [the
Board errs as a matter of law when it fails to ensure
compliance with its remand instructions]. The Board believes
that the record contains adequate medical evidence, aside
from the January 2005 examination, to decide the claim.
Moreover, the January 2005 examiner's comments do not
indicate that the veteran's records were not reviewed; only
that the examiner selectively reviewed those records he
deemed pertinent. The examiner in fact included a detailed
medical history in his report, including a detailed
description of the record at issue, apparently described to
him by the veteran. His report reflects a familiarity with
and discussion of not only the veteran's clinical history,
but also his present complaints and the objective findings.
The Board is satisfied that the examiner adequately analyzed
the available data in reaching his conclusions. Further, the
examiner made findings that were pertinent to the criteria
under the diagnostic code used to evaluate the veteran.
With respect to the veteran's statement that the examiner was
unable to locate a service medical record showing a several
day hospitalization for a closed head injury with loss of
consciousness, the Board finds that such evidence is not
pertinent to an evaluation of the veteran's current medical
condition. Service connection has already been established
for headaches. The manner in which the veteran's head was
injured in service has little if any bearing on his present
condition or on whether his current symptomatology
approximates the criteria for a higher rating.
While the Board is cognizant of its responsibility to
evaluate the veteran's appeal in light of the entire relevant
medical history, see 38 C.F.R. §§ 4.1, 4.41 (2004); Peyton v.
Derwinski, 1 Vet. App. 282, 287 (1991), the present level of
disability is of primary concern. See Francisco v. Brown, 7
Vet. App. 55, 58 (1994). The Board does not believe that the
January 2005 examiner's failure to locate the particular
service record identified by the veteran significantly
impacts the adequacy of the examination or the Board's
ability to evaluate the appeal in light of the relevant
medical history.
The Board can find nothing to indicate that the January 2005
examination was cursory or that the examiner did not give
adequate attention to the veteran's complaints and medical
history. That the examiner's findings do not support the
veteran's complaints is not a reason to find the examination
inadequate. Moreover, as a person without medical training,
the veteran is not competent to comment on matters requiring
medical expertise, such as the adequacy of a medical
examination. See Espiritu v. Derwinski, 2 Vet. App. 492,
494-5 (1992). Accordingly, the Board rejects the veteran's
contention and the implied request that another examination
be scheduled. See also Counts v. Brown, 6 Vet. App. 473,
478-9 (1994) and Gobber v. Derwinski, 2 Vet. App. 470, 472
(1992) [VA's . . . . "duty to assist" is not a license for a
"fishing expedition" to determine if there might be some
unspecified information which could possibly support a
claim].
The veteran submitted additional medical evidence after the
January 2005 SSOC was issued. No waiver of RO consideration
of such evidence was included.
See 38 C.F.R. § 20.1304 (2004). However, the submitted
evidence consists of photocopies of service medical records
that were already in the claims file and thus already have
been considered by the RO. These records were submitted by
the veteran in an effort to elaborate on the cause of his
service-connected disability. However, as explained above
service connection has been granted and it is the current
level of disability which is at issue here. The Board finds
that a remand is not required for initial RO consideration of
this evidence.
In short, the Board has carefully considered the provisions
of the VCAA in light of the record on appeal, and for the
reasons expressed above finds that the development of the
claim has been consistent with the provisions of the new law.
Under these circumstances, the Board can identify no further
development that would avail the veteran or aid the Board's
inquiry.
The veteran has been accorded ample opportunity to present
evidence and argument in support of his appeal. The veteran
was informed of his right to a hearing and was presented
several options for presenting personal testimony. He
indicated in a July 2001 statement that he wanted a BVA
hearing; however, he cancelled that request by way of an
October 2001 letter. He has not since requested another
hearing.
The matter of representation has been fully discussed in the
Introduction.
Accordingly, the Board will proceed to a decision on the
merits.
Pertinent law and regulations
Increased disability ratings - in general
Disability evaluations are determined by the application of
the VA's Schedule for Rating Disabilities (Rating Schedule),
38 C.F.R. Part 4 (2004). The percentage ratings contained in
the Rating Schedule represent, as far as can be practicably
determined, the average impairment in earning capacity
resulting from diseases and injuries incurred or aggravated
during military service and their residual conditions in
civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R.
§§ 3.321(a), 4.1 (2004) [general rating considerations;
essentials of evaluative ratings].
Fenderson considerations
In Fenderson v. West, 12 Vet. App. 119 (1999), it was held
that evidence to be considered in the appeal of an initial
assignment of a rating disability was not limited to that
reflecting the then current severity of the disorder.
Compare Francisco v. Brown, 7 Vet. App. 55, 58 (1994) [where
entitlement to compensation has already been established and
an increase in the disability rating is at issue, the present
level of disability is of primary concern]. In Fenderson,
the Court also discussed the concept of the "staging" of
ratings, finding that, in cases where an initially assigned
disability evaluation has been disagreed with, it was
possible for a veteran to be awarded separate percentage
evaluations for separate periods based on the facts found
during the appeal period.
Specific schedular criteria
Diagnostic Code 8100 [Migraine] provides the following levels
of disability:
50% With very frequent completely prostrating and
prolonged attacks productive of severe economic
inadaptability;
30% With characteristic prostrating attacks occurring on
an average once a month over last several months;
10% With characteristic prostrating attacks averaging
one in 2 months over last several months;
0% With less frequent attacks.
See 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2004).
The rating criteria do not define "prostrating." The Board
additionally observes that the Court has not undertaken to
define "prostrating". Cf. Fenderson, 12 Vet. App. 119, in
which the Court quotes Diagnostic Code 8100 verbatim but does
not specifically address the matter of what is a prostrating
attack. According to Webster's New World Dictionary of
American English, Third College Edition (1986), p. 1080,
"prostration" is defined as "utter physical exhaustion or
helplessness."
Factual background
On examination in August 2000, the veteran described having
migraine headaches for some time. The headaches produced a
hammering type pain, "like a sledge hammer at times." The
veteran did not vomit with the headaches. He said that he
takes medication for the headaches. The examiner's opinion
was that the veteran had migraine headaches occurring
approximately two times a week which were not incapacitating.
At the time of a November 2002 VA examination, the veteran
stated that he had headaches daily which would last three to
four hours. He also described another type of headache three
times a week which he described as a migraine. During these
headaches, he experienced no nausea, vomiting, photophobia or
phonophobia. The veteran reported that medications
successfully suppress the headache and make it manageable.
The veteran reported that in the last year he had missed
three days of work on six occasions. Physical examination of
the veteran was unremarkable.
A February 2003 clinical report described a history of
episodic vascular and mixed headaches. However, these
attacks were not described as prostrating. Indeed, the
examiner noted that although the veteran had a headache which
was ongoing at the time of the examination, the veteran was
able to drive himself to the hospital for his examination
without difficulty. He was alert and cooperative at the time
of the examination. Although he was found by the examiner to
be in obvious discomfort, the veteran was not incapacitated.
The veteran told the January 2005 examiner that his symptoms
have considerably increased in severity and frequency.
However, he stated that after a recent change in medication,
within about 30 minutes of taking his new medication, he is
usually significantly better. He described a moderate amount
of tension across the forehead when he has headaches.
The January 2005 examiner reported that he found nothing
unusual in his examination of the veteran. The examiner
described the veteran's condition as generally not affecting
the veteran's activities of daily living. The veteran stated
that he was bothered frequently by outside stressors in his
job as a security guard, and that such stressors were
productive of severe headaches. However, he did not describe
such attacks as prostrating or in terms that would support an
interpretation of prostrating attacks. Indeed, the veteran
stated that he does not permit these attacks to interfere
with his work, although at times it is a significant
difficulty.
Analysis
The veteran is seeking an increased disability rating for his
service-connected headaches, which are currently evaluated as
10 percent disabling under 38 C.F.R. § 4.124a, Diagnostic
Code 8100 (2004). He essentially contends that the
symptomatology associated with his headaches is more severe
than is contemplated by the currently assigned rating.
Assignment of diagnostic code
The assignment of a particular diagnostic code is "completely
dependent on the facts of a particular case." Butts v.
Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may
be more appropriate than another based on such factors as an
individual's relevant medical history, the diagnosis and
demonstrated symptomatology. Any change in a diagnostic code
by a VA adjudicator must be specifically explained. Pernorio
v. Derwinski, 2 Vet. App. 625, 629 (1992).
The veteran has been diagnosed with migraines, most recently
by the January 2005 VA examiner. Diagnostic Code 8100 deals
specifically with migraines. The veteran has not suggested a
more appropriate diagnostic code, and the Board cannot
identify one.
Accordingly, Diagnostic Code 8100 is the most appropriate as
to this issue and the Board will apply it below.
Schedular rating
The Board has reviewed the evidence of record, and for
reasons that will be expressed in greater detail below, the
Board finds that the overall level of symptomatology
associated with the veteran's headaches is not consistent
with the criteria enumerated for a 30 percent or higher
rating.
The key factor in evaluating migraines is the presence and
frequency of prostrating attacks. To warrant a 30 percent
rating under Diagnostic Code 8100, the evidence must show
characteristic prostrating attacks occurring on an average
once a month over the last several months. To warrant a 50
percent rating, the evidence must show very frequent
completely prostrating and prolonged attacks productive of
severe economic inadaptability.
In essence, an increased rating above the currently assigned
10 percent is not warranted, based on specific medical
findings that the veteran's headaches are not incapacitating
and do not interfere significantly with his work or other
activities. There is an absence from the medical record, and
indeed from most of the veteran's descriptions of his
symptoms, of any reference to prostrating attacks or attacks
of the type and degree contemplated for a 30 percent or
higher rating. The Board believes that the veteran's own
description of headaches that are "manageable," even though
requiring medication, is inconsistent with the conclusion
that they are prostrating.
The Board is of course aware of the veteran's own
contentions. In his August 2001 notice of disagreement, the
veteran stated that he gets migraines 2 to 3 times per week.
In an October 2001 letter, he stated that headaches have
occurred more than twice a week since service. Similarly, in
an August 2002 letter, the veteran stated that he was having
migraine headaches daily within the past three months. The
Board has no reason to doubt the veteran's statements, since
they are congruent with his reports to health care providers.
However, also consistent with his reports to doctors that
veteran has not indicated that his headaches were prostrating
in nature or that they prevented him from continuing with his
daily activities. Indeed, in the October 2001 letter, he
stated that the medication he takes keeps him from frequent
doctor visits. The Board believes that the veteran's
statements are essentially in accord with the medical
evidence; and, overall, they do not contradict the findings
of the January 2005 examiner that the veteran's condition
generally does not affect his activities of daily living, or
those of the August 2000 examiner, that the veteran's
headaches were not incapacitating.
In a February 2003 letter, the veteran stated that in 2001
and 2002 together, he missed over 50 days from work.
However, he stated that these absences were due to problems
with his ears, bronchitis, prostatitis, and sleep apnea in
addition to his headaches. A review of the record indicates
that the veteran is service connected for fourteen different
disabilities, to include prostatitis, hearing loss and
chronic bronchitis, as well as being non service connected
for other claimed disabilities, including sleep apnea. It
does not appear that the veteran's headaches, alone, have
caused any absence from work by his own report.
The November 2002 examiner reported that the veteran rated
his daily headaches at 8 out of 10, and his migraines at 10
out of 10. However, this is a recitation of the veteran's
own self appraisal and is not an objective finding. See
Swann v. Brown, 5 Vet. App. 229, 233 (1993) [the mere
transcription of medical history does not transform the
information into competent medical evidence merely because
the transcriber happens to be a medical professional]. As
has been reported in the factual background section above,
physical examinations of the veteran have been clinically
negative. The Board believes that a description by the
veteran of his headache pain being 10 out of 10 [the most
excruciating pain imaginable] does not square with his
reports that the headaches do not significantly interfere
with his daily functioning. See 38 C.F.R. § 4.10 (2004).
Indeed, the only report of the veteran's seeking medical
treatment for headaches, in February 2003, although noting
discomfort (due to photophobia, not pain), indicated that the
veteran drove himself to the hospital "without difficulty".
This is hardly consistent with extreme pain on an 8 out of 10
or 10 out of 10 scale.
The Board wishes to make it clear that it certainly does not
dispute that the veteran's headaches may be uncomfortable and
inconvenient, and may indeed cause some degradation in his
efficiency on the job. This is recognized in the assignment
of a 10 percent rating. See 38 C.F.R. §§ 3.321(a), 4.1; see
also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992) and Van
Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the
disability rating itself is recognition that industrial
capabilities are impaired]. Thus, while in no way diminishing
the obvious impact that the headaches have on the veteran's
life style in general, the Board finds nothing in the record
which allows for the assignment of a disability rating higher
than the currently assigned 10 percent.
In sum, the evidence of record does not demonstrate
prostrating attacks occurring on an average once a month over
last several months. Nor does the evidence demonstrate very
frequent completely prostrating and prolonged attacks
productive of severe economic inadaptability. As noted
above, the veteran told the January 2005 examiner that he
does not permit these attacks to interfere with his work.
For the reasons described above, the Board finds that the
veteran's headaches are not productive of such symptomatology
as warrants a rating higher than 10 percent.
Fenderson considerations
In this case, the medical evidence of record appears to
support the currently assigned rating for the entire period
since service connection was granted, April 1, 2000. The
reported symptoms do not allow for the assignment of a 30
percent or higher disability rating at any time during the
period of time here under consideration. Based on the
record, the Board finds that a 10 percent disability rating
was properly assigned for the entire period.
Extraschedular rating
The Board notes in passing that the veteran has not in
connection with this appeal indicated, nor presented evidence
to support the premise, that his service-connected headaches
result in marked interference with employment or frequent
periods of hospitalization as to render impracticable the
application of the regular schedular standards. See 38
C.F.R. § 3.321(b) (2004) [extraschedular rating criteria].
Accordingly, in the absence of the matter being raised by the
veteran or adjudicated by the RO, the Board will not address
the veteran's entitlement to an extraschedular rating. See
Bernard v. Brown, 4 Vet. App. 384 (1993). In the event the
veteran believes consideration of an extraschedular rating
for his headaches is in order, he may raise this with the RO.
Conclusion
In conclusion, for the reasons and bases expressed above, the
Board finds that the preponderance of the evidence is against
the veteran's claim of entitlement to an increased rating for
his service-connected headaches. The benefit sought on
appeal is accordingly denied.
ORDER
The veteran's claim of entitlement to an increased evaluation
for service-connected migraine headaches is denied.
____________________________________________
Barry F. Bohan
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs